President Obama has nominated Goodwin Liu for a spot on the United States Court of Appeals for the Ninth Circuit. Liu, age 39, is a professor at UC Berkeley School of Law (Boalt Hall). Based on his faculty biography, it appears that he has practiced law for, at most, three years.
Liu is staunchly left-wing. For example, he chairs the Board of Directors of the left-liberal American Constitution Society for Law and Policy. And he has said that, for him, fidelity to the Constitution means that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation. In other words, “progressive” judges (like Liu hopes to become) get to interpret the Constitution to mean pretty much whatever they think is best for society at a given moment.
The titles of some of Liu’s publications also suggest a leftist bent. They include “Rethinking Constitutional Welfare Rights” in Stanford Law Review (2008); “History Will Be Heard: An Appraisal of the Seattle/Louisville Decision” in Harvard Law & Policy Review (2008); “Improving Title I Funding Equity Across States, Districts, and Schools,” in Iowa Law Review (2008); “Education, Equality, and National Citizenship” in Yale Law Journal (2006); and “Interstate Inequality in Educational Opportunity” in New York University Law Review (2006). I’m confident these writings will be reviewed carefully by Republican Senators and I suspect they will contain material that can form the basis for a strong attack on his nomination.
Some will argue that Liu’s substantive views are not relevant to the confirmation process, and that the focus should be solely on his objective qualifications. But that has not been Liu’s position. As Jonathan Adler at the Volokh Conspiracy reminds us, when Liu testified against the nomination of Justice Alito to the Supreme Court, he said that Senators should consider a nominee’s “judicial philosophy,” and that Alito fails such a test.
Liu’s testimony was arrogant and highly offensive. Going beyond the standard “X is outside the judicial mainstream,” Liu argued that the America envisioned by Alito’s record on the bench “is not the America we know. . .” Even in this partisan age, it’s over-the-top to suggest that someone is un-American just because you disagree strongly with his judicial decisions.
Ed Whelan found that Liu’s testimony was also “tendentious to the point of being misleading”:
He claims that Alito [in Doe v. Groody, the immunity case involving the search of a 10-year-old], “all but ignored” a “rule” whose application Alito openly contested. (An interview that Liu gave on Pacifica radio regarding the case was even worse. He had a screwball theory that even if Alito were correct to read the warrant to incorporate the affidavit, that wouldn’t have justified the search. Liu concealed from his listeners the unhelpful fact that the affidavit requested a search of “all occupants” of the residence and instead argued that the stated reasons for the search wouldn’t have extended to the 10-year-old.)
It is too early to tell for sure, but Liu may be a nominee Republicans should go all-out to block, as the Democrats went all-out to block a number of court of appeals nominees during the Bush administration. At a minimum, Liu a good candidate for some of his own medicine.